Archives for August 6, 2014

On Monday, August 4, 2014, the American Bar Association announced that the CBA’s Environmental Law Section’s 2013 Trees Project will receive the ABA’s 2014 State or Local Bar Environment, Energy, and Resources Program of the Year Award. The award recognizes the best continuing legal education program or service project focused on issues regarding environmental, natural resources, or energy law. The award will be presented on August 10 at the ABA Annual Meeting in Boston.

The CBA’s 2013 Trees Project was developed by the Environmental Law Section in an effort to help remediate some of the devastating effects of wildfires in 2012. The project connected local bar associations and attorneys with other community associations to plant trees and help educate people about the dangers of wildfires. Over 4,200 trees were planted as part of the 2013 Trees Project.

Ann Rhodes and Maki Latidris, members of the Environmental Law Section Advisory Council, championed the effort and worked to gain support for the 2013 Trees Project from the CBA Board of Governors and the community. They planned tree planting days in five burn areas: Colorado Springs (Waldo Canyon Fire), Durango (Weber Fire), Jefferson County (Hayman Fire), Boulder (Four Mile Canyon Fire), and Fort Collins (High Park Fire). The projects were modeled on successful tree planting projects in Boulder in 2011 and 2012.

The 2013 Trees Project was a branch of the ABA’s 1 Million Trees Project, an effort to bring volunteers together to plant one million trees across the country by 2014.

The Colorado Court of Appeals issued its opinion in People v. Pifer on Thursday, July 31, 2014.

Sexual Assault on a Child—Evidence—Enticement of a Child—Challenge for Cause.

A.E., K.J., and M.S., all girls between the ages of 9 and 12, took Pifer’s dog for a walk. Pifer invited the girls in and played a game of chase with them, tossing a bed sheet over them when caught. The girls alleged that, in the course of playing with them, Pifer individually and separately sexually assaulted each of them by touching their intimate parts over their clothing.

Pifer argued that that there was insufficient evidence of sexual contact and sexual assault because the sheet was between his hand and K.J.’s clothing. Therefore, he did not touch the “clothing covering the immediate area” of K.J.’s intimate parts. Pifer’s conduct, however, falls within the plain and ordinary meaning of “touching.” Therefore, there was sufficient evidence to convict him of sexual contact and sexual assault.

Pifer also argued that the evidence was insufficient to establish the enticement of a child charge. According to CRS § 18-3-305(1), enticement of a child occurs where the actor “invites or persuades” a child to enter any building with the intent to commit sexual assault or unlawful sexual contact upon the child. Here, the People presented evidence that Pifer approached the girls outside his apartment in his underwear with his penis partially visible, invited them into his apartment, and had unlawful sexual contact with the girls shortly after they entered the apartment. Therefore, there was sufficient and substantial evidence that Pifer intended to sexually assault the girls when he invited them inside.

Pifer contended that the court erred by denying his challenge for cause to a prospective juror. The court denied the challenge because the juror’s potential frustration with the deliberation process was insufficient to justify sustaining a challenge for cause. The prospective juror gave no indication that he was biased against Pifer or would be unable or unwilling to render an impartial verdict according to the law and the evidence. The judgment was affirmed.

The Colorado Court of Appeals issued its opinion in People v. Marciano on Thursday, July 31, 2014.

Theft—Challenge for Cause—Burden of Proof—CRE 803(6)—Bank Records—Confrontation Clause of the Colorado Constitution—Evidence.

In her position as secretary for CDL Trucking, defendant’s duties included managing payroll, billing, making deposits, and loading money onto Comdata Mastercard cash cards for truck drivers’ use while on the road. Defendant stole money from the company by writing checks to herself and cash and by loading money onto a Comdata cash card for her own personal use. A jury found defendant guilty of multiple counts of theft.

On appeal, defendant contended that the trial court erred when it denied her challenges for cause as to Juror M and a second juror, both of whom ultimately sat on the jury. During voir dire, Juror M said that she expected defendant to present evidence in her defense. Neither the prosecutor nor the trial court engaged in any rehabilitative questioning of Juror M to clarify her expectations. The trial court gave no explanation on the record regarding why Juror M’s statements should be disregarded. Thus, defendant’s convictions must be reversed.

Defendant also contended that the trial court improperly admitted her bank records and records that CDL received from Comdata. A foundation for admission of bank statements under CRE 803(6) may be based on judicial notice of the nature of the business and of the records. Therefore, the trial court did not err in admitting these records. However, the trial court abused its discretion when it admitted the records from Comdata without the testimony of a foundational witness establishing their admission.

Defendant argued that admission of the Netbank statements violated her right to confrontation under the U.S. and Colorado Constitutions. Defendant’s personal bank account statements from Netbank were not created for testimonial purposes. Despite the indicia of reliability under CRE 803(6) specific to bank records, the prosecution did not establish or even allege that a witness or declarant from Netbank was unavailable. Therefore, the admission of the Netbank statements violated defendant’s state Confrontation Clause rights. On remand, to admit these documents, the prosecution must either present the testimony of an appropriate witness or establish that such a witness is unavailable for trial.

Defendant further contended that the evidence was insufficient to sustain her convictions on only the theft counts based on the transfers made to the Comdata cash card. Where the evidence admitted at trial, whether or not in error, would have been sufficient to sustain a guilty verdict, the prosecution is entitled to a retrial on remand. Therefore, although the Comdata records should not have been admitted at trial, the counts are nonetheless subject to retrial on remand. The judgment was reversed and the case was remanded to the trial court for a new trial on all counts.

Gustavio Ramirez-Coria entered the United States illegally in 1995. He was placed in removal proceedings in April 2009 and conceded removability. At a second hearing in May 2009, Ramirez-Coria requested a continuance to complete his application for cancellation of removal (Form EOIR-42B), and his hearing was continued to June 2009. At the June hearing, Ramirez-Coria submitted Form EOIR-42B, but he did not submit the required biometric information (his fingerprints), despite the instructions on Form EOIR-42B directing him to attend an appointment at an Application Support Center (ASC) and obtain a biometrics completion notice to attach to his application. The immigration judge (IJ) rescheduled his hearing to October 2010 and informed Ramirez-Coria that he was responsible for completing the biometrics, and that failure to do so could result in a denial of his petition. The IJ later rescheduled the hearing until January 2012.

Ramirez-Coria’s counsel moved to withdraw prior to the January 2012 hearing, claiming that his client had lost all interest in his own case. New counsel entered an appearance and the hearing was rescheduled for March 2012. At the March hearing, Ramirez-Coria again submitted Form EOIR-42B without the biometric information. His counsel told the IJ that Ramirez-Coria had gone to an ASC the previous day and provided his fingerprints, but the ASC would not complete the process because he did not have any form of ID, including his birth certificate. The government stated that they had no record Ramirez-Coria had submitted his fingerprints. The IJ determined that Ramirez-Coria’s application for cancellation of removal should be deemed abandoned because at no time in the 2 1/2 years his case had been pending had Ramirez-Coria attempted to obtain his birth certificate, and his counsel had never informed the court he was having trouble completing the biometric requirement. The IJ dismissed his application but granted Ramirez-Coria voluntary departure. Ramirez-Coria appealed to the BIA, which agreed with the IJ and dismissed his appeal.

The Tenth Circuit reviewed the BIA’s decision for abuse of discretion and found none. Ramirez-Coria raised several arguments on appeal that were contradicted by the record. Ramirez-Coria had been informed by the IJ that his application could be dismissed if he did not complete the biometrics, yet he failed to do so. Ramirez-Coria claimed he had good cause for his failure to complete the biometrics because his family in Mexico would not send him his birth certificate. However, the BIA rejected this claim, noting that at some point within the more than 2 1/2 years Ramirez-Coria could have petitioned Mexican authorities for the documentation. The Tenth Circuit ruled that the IJ acted well within his authority in determining that Ramirez-Coria abandoned his application, and upheld the decision of the IJ and BIA.

Dr. Ernest John McKenzie was born in Canada but naturalized to the United States. He discovered at some point that his Canadian birth certificate contained the wrong birth date, and, after naturalizing, had the Canadian birth certificate corrected to reflect his actual date of birth. He then applied to the USCIS to have his naturalization certificate corrected with the proper birth date, but his application was denied pursuant to 8 C.F.R. § 338.5(e). Dr. McKenzie then petitioned the district court to amend his certificate of naturalization, but that petition was dismissed for lack of subject matter jurisdiction. The district court noted that even if § 334.16(b) could confer jurisdiction, it did not apply to naturalizations occurring after 1991, when naturalization authority was transferred to the attorney general. Dr. McKenzie appealed to the Tenth Circuit.

The Tenth Circuit first laid out the legal background of the authority of courts to approve, deny, amend, or otherwise review petitions of naturalization, noting that all authority of the courts was transferred to the attorney general in 1991. The Tenth Circuit then looked at Dr. McKenzie’s specific claims and determined that nothing in § 334.16 grants courts the authority to amend certificates of naturalization. The Tenth Circuit commented that although arguments that a court lacks jurisdiction can be brought at any time, arguments in support of a court’s jurisdiction must be preserved in the lower court to be heard on appeal. Because Dr. McKenzie failed to preserve two of his arguments supporting the Tenth Circuit’s jurisdiction, the court declined to address them. Congress transferred authority to hear naturalization petitions away from the courts long before Dr. McKenzie’s naturalization, and neither the district court nor the Tenth Circuit had jurisdiction to decide whether to amend his naturalization certificate.

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We are told fact sections should tell a story, as if such advice is self-executing. No one explains how to tell a story. Yes, we tell stories everyday. But when we do, they come out naturally and may not be very good. Writing a fact section is not natural and needs to be good.